The State V John Ogbubunjo And Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

On 26th October. 2000 we heard this appeal which emanates from the decision of the Court of Appeal, Port Harcourt Division (hereinafter referred to as the court below). We peremptorily and unanimously dismissed it, having earlier carefully read the briefs of both parties and listened to the arguments of their counsel. I thereafter indicated that I would give my reasons today for so doing. Before proceeding to do so, however, I wish to pause here and pry into the case’s historical journey briefly as follows:

Criminal proceedings in this case were initiated by an information filed at the instance of the Attorney-General of Imo State in the Mbano/Etiti Judicial Division holden at Etiti and before Pats-Acholonu, J. as he then was. The proceedings were against six accused persons including the respondents herein, namely, John Ogbubunjo and Njoku Amaechi for the offence of murder contrary to section 319 of the Criminal Code, Cap. 30, vol. 11, Laws of Eastern Nigeria, 1963, applicable in Imo State. By the particulars of the offence, the respondents and four others were alleged to have murdered one Celestina Amucha on or about 25th day of September, 1988 in Obollo Mbano within jurisdiction. With the death of one Harrison Amucha, the original second of the 6 accused persons in custody, plea was taken from the remaining five whose identities consisted John Ogbubunjo (now 1st accused/1st respondent), Francisca Amucha (3rd accused), Njoku Amaechi (4th accused/respondent) and Janet Ameachi (5th accused).

In the trial that ensued, the prosecution called seven witnesses in an endeavour to prove the charge while all five accused including 1st and 4th respondents testified in their defence, calling no witness in the process.

The prosecution’s case was based on a purported circumstantial evidence and none of the seven witnesses called was an eye-witness to the alleged murder of the deceased. A summary of such purported circumstantial evidence may be made as follows:

1. The deceased, Celestina Amucha, on 25/9/88 was in her house when PW1 (Juliana Amucha) called to see her but later left her house in the company of 1st, 2nd, 3rd accused persons and one Harrison (the accused person that died before plea was taken) never to be seen alive again.
2. PW2 on the other hand, in his own evidence, stated that on 25/9/88, he went to the house of Celestina Amucha (the deceased) to take the things he (witness) asked her (deceased) to buy for him, that he saw 1st accused (a friend of the deceased) as well as 2nd and 4th accused and that 1st accused informed Harrison (deceased) that he had been waiting for him for their appointment but he did not see him. The 1st, 2nd and 3rd accused and Harrison (deceased) as well as the deceased (Celestina Amucha) he added, then left and after that day he did not see Celestina (deceased) alive again. She further stated that when Celestina, the deceased did not come back and she asked Francisca of her where about, she received the reply that she (Celestina) was helping the 1st accused/appellant in preparing palm oil. She thereupon summoned her husband’s relations the next day to inform them that Celestina who went out with the accused persons as she had mentioned had not returned while the only time she saw her again was when her body was exhumed from the grave. PW2, it was further stated, testified to how in the night of 25/9/88, he heard a female voice from 4th accused house saying:

“Umuahia, Chineke, do you want to kill me Please, allow me to say some prayers.”

Adding, that when in the morning he went to 4th accused’s house, he did not see human blood. PW3 testified to the effect that he only heard of the death of the deceased; that he was requested by his people to ask Harrison the whereabouts of Celestina and that Harrison informed him “he (sic) the accused persons kill (sic) the deceased.”

PW4 when examined-in-chief said that at the Mbano Police Station, one young man telephoned him to say that the deceased had died and was killed by the 1st accused.

The evidence of PW6, Godwin Ohaji, was to the effect that in September, 1989 during the new yam festival, he went to the house of the 4th accused person and saw 1st, 2nd and 3rd accused persons eating and drinking with a “plumpy yellow woman.” That the Police later started looking for 1st accused and asked him to locate him but that when he met him, (1st accused) the latter denied knowing or seeing the “plumpy yellow woman” even though she had been his friend. The witness further said that the 2nd, 4th and 5th accused persons told him that the deceased was buried in their land and described the place leading him to discover the grave of the deceased, though denying under cross-examination saying so to the Police in his statement.

Dr. Godwin Metuka, who testified as PW5, said he performed post mortem examination on the body of the deceased and gave the cause of death as “severe haemorrhage” adding that he found that the hands of the deceased were cut off from the wrist.

In their defence, all the accused persons denied committing the offence and with the exception of the 3rd accused denied knowledge of the deceased. The 2nd accused set up a defence of alibi contending that he was at Aba on the material date of the commission of the alleged offence.

At the end of the trial and after counsel’s submission, the learned trial Judge, Pats Acholonu, J. (as he then was), delivered his judgment on 27/7/90 convicting and sentencing the 1st and 4th accused persons (now respondents) to death while discharging and acquitting the 2nd, 3rd and 5th accused persons respectively.

The respondents as appellants were dissatisfied with the decision and so appealed to the court below, which court allowed their appeals and returned a verdict of discharge and acquittal in favour of each.

The State has now appealed to this Court by a notice of appeal dated 19thh April, 1996 and filed on 26/4/96 which contained eight grounds of appeal. From the eight grounds, two issues christened “Live and Burning” have been identified as arising for our determination, to wit:

1. Whether the learned Justices of the court below were justified in using un-tendered non-exhibited extra judicial statements of the prosecution (appellant’s) witnesses No.2 and 6, to discredit the appellant’s case and thereafter basing its discharge and acquittal of the respondents on that manifestly flawed and erroneous procedure: Grounds 1, 3, 5, 6, and 7 of appeal.
2. Whether the learned Justices of the court below were justified in holding that the prosecution’s witnesses, testimony were unreliable and of doubtful credibility and thereafter reversing the trial court’s judgment by acquitting the respondents on Grounds 4 and 5 of the appeal.

The respondents on the other hand have through their counsel submitted one lone issue for determination as follows:

1. Whether the court below was right in its decision in setting aside the judgment of the trial High Court which convicted and sentenced the respondents for murder and substituting a verdict of discharge and acquittal in favour of the respondents.

Before the argument of these issues, it is my view after taking a careful look at them that the respondents’ lone issue above will suffice to dispose of the points in controversy.

Argument of lone issue

Having carefully listened to the submission of counsel on both sides and read the briefs of argument proffered by them I wish to say as follows:

The essential ingredients that the prosecution must establish in order to prove its case beyond reasonable doubt to justify a conviction of the respondents (they were 1st and 4th accused persons in the trial court) for murder are:

1. That the deceased has died
2. That the death of the deceased has resulted from the act of the accused.
3. That the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence. See

(i) Edwin Ogba v. The State (1992) 2NWLR (Pt.222) 164 at page 198, paragraph G

(ii) Akinfe v. The State (1988) 3 NWLR (pt.85) 729

(iii) Oteki v. Attorney-General, Bendel State (1986) 2 NWLR (Pt.24) 648.

(iv) Onah v. The State (1985) 3 NWLR (pt.12) 236.

As was clearly stated by this court per Nnamani, JSC in Philip Omogodo v.The State (1981)5 SC5 at pages 26 – 27:

“In a murder case as in the instant one, the prosecution cannot succeed in establishing the guilt of the accused unless it not only established the cause of death but established in addition that the act of the accused caused the death of the deceased.”

See also Gbadamosi v. The State (1992) 9 NWLR (Pt.266) 465 at 478 and 479;Afolabi v. Commissionerof Police (1961) 2 SCNLR 307, (1961) All NLR 682 (reprint) and Ekpe v. The State (1994) 9 NWLR (Pt.368) 268 at 269.

In the instant case the prosecution called PW5, Dr. Benjamin Ibezim, who testified as follows:

“The most significant finding was that the hands were cut off from the wrist. All other structures were intact. There was no sign of strangulation. The deceased must have died of severe hemorrhage.”

Having established the cause of death of the deceased, it remains for the prosecution to establish that the act of the respondents caused the death of the deceased and that such act was intentional with the knowledge that death or grievous bodily harm was its probable consequence. From the totality of the evidence adduced before the trial court, I am of the firm view that the prosecution failed to prove these essential ingredients of the offence as no iota of evidence was shown that it was the respondents who cut off the hands from the deceased’s writ which resulted in the severe hemorrhage that caused her death. Nor was evidence by the prosecution through any of the witnesses called indicate that he or she was an eye-witness. This was confirmed by the learned trial Judge in his judgment when he observed:

“There was no one who swore or could swear with any degree of certainty that he saw the deceased being killed and buried.”

Thus, the prosecution in the instant case relied on circumstantial evidence in an attempt to prove the remaining vital ingredients of the offence under probe. Mindful of the fact that the law is that where direct evidence is not available, circumstantial evidence which is cogent, and pointing irresistibly and unequivocally as well as compellingly at the accused, is admissible to support a conviction. See this court’s decisions in Ukorah v.The State (1977) 4 SC 167 at 174; Fatoyinbo v. A. G. Western Nigeria (1966) WNLR 4; Atano v. A.G. Bendel State (1988) 2 NWLR (pt.75) 201 and Edwin Ogba v. The State (supra) at page 98, paragraph H.

In the light of the arguments proffered by both sides in this case, a careful consideration of the circumstantial evidence available on record will show that it fell far short of the quality and standard required in law to sustain the conviction of the respondents. The available circumstantial evidence was neither cogent, complete and unequivocal nor did it lead to the irresistible conclusion that the respondents and no one else cut off the hands of the deceased from the wrist which led to the severe hemorrhage that caused her death. To amplify this point, a critical appraisal of the evidence of PW1, PW2, PW3, PW4 and PW6 by me becomes necessary and imperative as follows:

The evidence of PW1, Juliana Amucha, was to the effect that on 25/9/88 she saw the deceased, the 1st, 2nd, 3rd accused and Harrison (The accused person who later died before the commencement of trial) go out. She did not see the deceased alive again. This evidence neither helped in any way to establish who cut off the deceased’s hands later resulting in her death as testified to by PW5, Dr. Benjamin Ibezim nor the finding of the learned trial Judge that the accused was not present on the date of the commission of the offence on 25/9/88, moreso when the witness asserted that she saw 2nd accused person in the company of the deceased. One may then ask, if PW1 ‘s evidence that she saw 2nd accused person with certain other persons in the company of the deceased was shown to be false by the findings of the learned trial Judge to the effect that the 2nd accused was somewhere else at Aba, is there any reason why her evidence that she also saw the 1st, 2nd, 3rd accused persons and Harrison with the deceased could be readily believed

Coming to the evidence of PW2 (Bernard Iwuji), the respondents’ counsel’s submission was that this witness’s evidence did not advance the case of the prosecution a bit. Led in examination in Chief, he stated that on 25/9/88, he saw the accused persons with some persons including his own sister and two other women in 4th accused’s house. He did not add by showing that the deceased was also present thereat. However, he asserted that in the night of the same 25/9/88, he heard a female voice from the house of the 4th accused saying:

“Umuahia, Chineke, do you want to kill me. Please allow me to say some prayers.”

Now, PW2 could not identify the particular female voice he was alluding to raise the said alarm. Quite apart from the fact that this witness did say with particularity that the voice was that of the deceased, he could not aver whom the unknown female voice was addressing. Worse still, PW2 went to the house of the 4th accused (now 2nd respondent on the appeal herein) the following morning and did not see any human blood there to show that any person was killed. It was not of course enough for PW2 to say as he did in his testimony before the learned trial Judge:

“The voice of the person I heard was that of a woman.” He should have gone further to say whether it was the voice of the deceased. Be it remembered that the respondents and the other accused persons did not stand trial for the murder of “a woman” but for the murder of the deceased, – a certain specific woman by name Celestina Amucha as contained in the information.

I now proceed to consider the evidence of PW3, Alexander Amucha and brother-in-law to the deceased, which of course, was through and through hearsay. Said he when he testified before the trial court:

“Celestina is now dead. I learnt of her death by way of information. I was asked by my people to ask Harrison the whereabouts of Celestina.”

On being further examined he said:

“Harrison told me that he (sic) accused persons killed (sic) the deceased.”

The evidence of PW 4, Francis Maduwuba and brother- in-law of the deceased. was also every inch hearsay. The hallmark of its hearsay nature culminated at the point he told the learned trial Judge while still being examined-in-chief as follows:

“There at the Police Station, one young man telephoned me and told me that the woman we were looking for is now dead and is killed by 1st accused,”

From the foregoing, it can be palpably seen that the evidence of PW3 and PW4, which was largely hearsay evidence, considerably weakened the circumstantial evidence if circumstantial evidence, it was, that was adduced by the prosecution.

PW6, Godwin Ohaji whose evidence was taken next did nothing to improve the quality of the prosecution’s case either. Firstly, he testified that the date of the events deposed to by him occurred “sometime in September, 1989.” This is at variance with the charge for which the accused stood trial – for which see page 1 of the record herein – which stated under particulars of offence that the offence was committed” on or about 25th day of September, 1988.” The substance of PW6’s evidence was that “sometime in September, 1989” during their new yam festival he went to 4th accused’s house and saw 1st, 2nd and 3rd accused persons eating and drinking there with “a plumpy yellow woman.” Police later started looking for the 1st accused person (now 1st respondent) and asked him to locate the accused but when he met him, the 1st accused denied knowing or seeing “the plumpy yellow woman.”

It is instructive to note that throughout his evidence, PW6, like PW2 did not say that he saw the deceased in 2nd respondent’s house; rather he merely talked about seeing “a plumpy yellow woman” whose name was not disclosed. Since PW6 knew Celestina Amucha, the deceased (see page 50 line 28 of the record) nothing stops him from mentioning her name if indeed she was among those he saw in the 2nd respondent’s house. A “plumpy yellow woman” as testified by PW6 cannot without more be equated to be the deceased. This is because none of the prosecution witnesses including PW6 who knew the deceased in her lifetime described her appearance while giving evidence and none specifically stated that she is “plumpy and yellow.”

Even though PW6 testified further on page 52, lines 16- 22 of the record that the 2nd, 4th and 5th accused persons told him that the deceased was buried in their land and described the place which led him to discover the grave of the deceased, however, under cross-examination, he admitted that he heard rumours and that he did not say so to the Police in his statement.

PW7 was Sgt. Godwin Metuka who was detailed to investigate this case. His evidence appears on pages 53 – 57 of the record and contains nothing against the respondents. His evidence under cross-examination on page 56 lines 23 – 28 of the record is to the effect that there is nothing to link the respondents with the death of the deceased. This is borne out by the following question and answer:

“Q. In your statement of report of 4th November, 1988, you indicated that there is nothing to link the accused persons with the death of the deceased. Are you still sticking to that report or are you denying it

A. Still maintain that the statement is correct.”

Speaking of the nature of circumstantial evidence, Lord Hewart, Lord Chief Justice of England, observed in the case of Taylor 7 Ors. v. R. 21 Cr. App. R. 20 at page 21 thus:

“It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics.”

In the instant case, there is no evidence of surrounding circumstances which by undesigned coincidence is capable of proving the proposition that the respondents committed the offence of murder with the accuracy of mathematics. Rather what we have from the prosecution is evidence of mere suspicion against the respondents, evidence of equivocation, of uncertainties, of hearsay and rumours, which in a criminal court cannot suffice to establish any offence beyond reasonable doubt. It is trite law that it is not sufficient to say “if the respondents are not the murderers, I know of no one else who is. There is some evidence against them and none against anyone else. Therefore, they must be found guilty.” Such line of reasoning is unsound. See the decision of this court in Valentine Adie v. The State (1980) ANLR 39 page 49 which cited with approval a passage in Emperor v. Browning 39 AC 322; also in Wills on Circumstantial Evidence 7th Edition page 324.

In Valentine Adie v. The State (supra) Uwais, JSC (as he then was) aptly stated on page 49 thus: “As we indicated in Ukorah (supra) there is a great need for a trial court to tread cautiously in the application of circumstantial evidence for the conviction of an accused for any offence with which he is charged. The Romans – we pointed out, with approval, in Ukorah (supra) at page 177 – had a maxim that it is better for a guilty person to go unpunished than for an innocent one to be condemned and Sir Edward Seymour speaking on a Bill of Attainder in 1696 laid greater emphasis on this maxim when he stated that he would rather that ten guilty persons should escape than one innocent should suffer.”

Unfortunately, in this case, the trial court did not tread cautiously in the application of circumstantial evidence before convicting the respondents.

In the case of Edwin Ogba v. The State (supra) in which this court upheld a conviction based on circumstantial evidence, the facts were that the appellant had a fight with two men. He used broken bottles in the fight. One of the two men in the fight had stab wounds inflicted from a sharp object. This, according to the expert medical evidence, is consistent with a broken bottle. There was evidence that the deceased was one of those involved in the fight. He was the one injured. He died within 24 hours of the injury. There was evidence of PW7 and of the deceased’s dying declaration that the injury was inflicted on him by the accused.

By a long line of cases beginning with Sala v. Sati (1938) WACA 10 it was laid down that to support a conviction on the question of circumstantial evidence, it must not only be cogent, complete and unequivocal but compelling and lead to the irresistible conclusion that the prisoner and no one else is the murderer; it must leave no ground for reasonable doubt. Put in another way, the evidence must be cogent and compelling as to convince a jury of the guilt of the accused. Such evidence is also expected to lead – irresistibly to the guilt of the accused and inconsistent with any other rational conclusion. There must be no other co-existing circumstances, which can weaken such inference. See Joseph Lori & Anor. v. The State (1980) 8-11 SC 81; Uwe Esai & Ors. v. The State (1976) 11 SC 39; Philip Omogodo v. The State (1981) 5 SC 5 at 24.

On the role suspicion plays in circumstantial evidence the following cases are instructive:

1. In Teper v. The Queen (1952) AC 480 at 489 where Lord Normand said:

“Circumstantial evidence may sometimes be conclusive but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another …. It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other coexisting circumstances which would weaken or destroy the inference,”

2. In Onah v. The State (1985) 3 NWLR (Pt.12) 236 at 244, where Obaseki, JSC observed thus: “The High Court and all courts of law are in duty bound to give critical examination to evidence adduced before them and ensure that the innocent are not punished or the guilty set free. They should action evidence and not hunches, rumours or suspicion so as to ensure that justice in its purest form is administered in the courts to all and sundry.”

See also ldapu Emilie v. The State (1991) 7 NWLR (pt.204) 480 at pages 495-496; Valentine Adie v. The State (1980) 1-2 SC 116 at 122; Clark v. The State (1986) 4 NWLR (pt.35) 581; Bozill v. The State(1985) 2 NWLR (Pt.465); Popoola v. C.O.P. (1964) NMLR and Ogwa Nweke Onah v. The State (1985) 3 NWLR (pt.12) 236 at 244; (1985) 12 SC 59 etc. where this court held variously that:

“Suspicion, however strong, cannot take the place of legal proof.” “Suspicion, however grave does not amount to proof:’ “Court must in its consideration of a criminal case give critical consideration of it to avoid suspicion and rumour,” “court cannot act on suspicion” etc.; to mention hut a few. “Indeed, suspicion is no evidence. Items of evidence raising suspicion which put together have not the quality of being corroborative evidence in the true sense cannot found a conviction.”

See the observations of Kolawole, JCA in Clark v. The State (supra) at page 325, where the learned Justice held inter alia:

“Suspicion may be many and sometimes grave, yet they will amount each to suspicion and no further. Combining them do not elevate them beyond the realms of suspicion. They will remain suspicion.”

See also Bell akaforv. Police (1965) NMLR 89 at 90/91; Onah v. The State (supra); Adio & Anor. v. The State (1986) 2 NWLR (Pt.24)581 at 593; Babalola v. The State (1989) 4 NWLR (pt.115) 264 at 268 and Okoduwa v. The State (1988) 2 NWLR (Pt.76) 333, (1980) 8-11 SC 333, 335 and 354.

The prosecution’s case in the case on appeal herein is so riddled with suspicion in all its ramifications that no reasonable tribunal would convict on the evidence adduced thereon.

For instance, there are several co-existing circumstances that greatly weakened, diluted and completely destroyed whatever circumstantial evidence that was adduced by the prosecution.

Firstly, there is no evidence that the respondents had any fight or quarrel at all with the deceased.

Secondly, there was the evidence of PW2 that after he heard a female voice in the night shouting “Umuahia, Chineke, do you want to kill me. Please allow me to say some prayers,” he went to the 4th accused’s (that is, 2nd respondent’s) house (from where the voice came) in the very next morning but did not see any human blood there. Surely, it is natural to expect PW2 to see human blood in the house of the 4th accused if indeed the deceased’s hands were cut off there and which led to severe hemorrhage that caused her death having regard to the expert medical evidence of PW5.

But fortunately for the respondents, PW2 said that he did not see any human blood in the house of the 4th accused which was the place from where the alleged female voice came.

Thirdly, unlike in the case of Edwin Ogba v. The state (supra), there was no evidence of any dying declaration made by the deceased that the injury was inflicted on her by the respondents.

Fourthly, no blood-stained dangerous weapon such as an axe, a cutlass or any sharp instrument was found in the possession of the respondents or seen in their houses. If as stated by PW5, the deceased’s hands were cut off from the wrist and she bled profusely to death, then this must have been done with a sharp instrument which could be an axe, a cutlass or any similar instrument and such an instrument will be blood-stained.

Fifthly, there was the hearsay evidence of PW3 and PW4 already alluded to herein before.

Sixthly, there was the story told by PW6 about a “plumpy yellow woman” whose identity was not disclosed and no prosecution witness who knew the deceased in her lifetime described her as a “plumpy yellow woman.”

Seventhly and finally, there was the evidence of the Police investigator, PW7 Sergeant Godwin Metuka who emphatically stated that there was nothing to link the accused persons with the death of the deceased. See page 65 lines 23-28 of the record.

In the light of all these co-existing circumstances which totally destroyed the circumstantial evidence adduced by the prosecution, the learned trial Judge was in serious error when in his judgment on page 82 lines 1 to 5 of the record he held that: ” ….. the 1st and 4th accused were responsible in particular for the death of the deceased. The evidence adduced point irresistibly to them in particular being responsible.”

Nothing can be farther from the truth on a proper appraisal of the evidence on record.

Since the trial court erroneously convicted and sentenced the respondents to death for murder on the basis of an insufficient, unconvincing, incomplete and totally unsatisfactory circumstantial evidence, the court below was perfectly justified in its decision setting aside such a perverse, unsound and manifestly unjust decision.

In the instant appeal, nothing in the form of a tenable and valid argument or reason exists in the appellant’s brief to show that the decision of the court below was wrong. The entire contentions of the appellant in its brief in the instant appeal could fairly be summarised in one sentence. It is that since the statements made by PW2 and PW6 to the Police were not tendered and admitted in evidence as exhibits at the trial court, such statements do not form part of the record of proceedings before the court below for that court to have considered them in gauging the credibility of PW2 and PW6, vis-a-vis their oral testimonies in court and holding them to be unreliable witnesses whose evidence cannot support conviction of the respondents.

I am of the firm view that the court below was wrong in considering the extrajudicial statements made by PW2 and PW6 to the Police which had some contradictions with their sworn evidence at the trial when the extra-judicial statements had not been tendered and admitted in evidence at the trial. This is the moreso that learned defence counsel did not confront PW2 and PW6 with these earlier alleged inconsistent statements pursuant to section 209 of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria, 1990. My view is strengthened by earlier decisions of this court in:

(i) Benson Esangbedo v. The State (1989) 4 NWLR (Pt.113) 57 at page 66, paragraphs D-G ..

(ii) Danladi Ozaki & Anor. v. The State (1990) 1 NWLR (Pt.124) 92 at page 125, paragraphs F-H.

(iii) Isaac Samba v. The State (1993) NWLR (Pt.300) 399 page 417, paragraphs G-H, page 418, paragraphs A-C.

(iv) Samuel Theophilus v. The State (1996) 1 NWLR (Pt.423) 139 at page 151, paragraphs F-H, page 152, paragraphs A-B.

I am also of the opinion that notwithstanding the said error made by the court below, its judgment is perfectly right and unassailable. I am further of the view that what this court has to decide is whether the decision or judgment of the court below is right, not whether its reasons were. See the cases of:

(i) R.A. Ukejianya v. J. I. Uchendu (1950) 13 WACA 45 on page 46.

(ii) Abel Nkado & 2 Ors. v. Ozulike Obiano & Anor. (1997) 5 NWLR (Pt.503) 31 page 56, paragraphs F.

(iii) Allied Bank of Nig. Lrd. v. Jonas Akubeze (1997) 6 NWLR (pt.509) 374 page 404, paragraphs A-B.

Now, what was the judgment of the court below The judgment was the orders it made on 28/3/96 when it determined the appeal. See Ex P. Chinery 12 QBD 342. See also Paul Cardoso v. John Bankole Daniel & Ors. as contained in the leading judgment delivered by Katsina-Alu J.C.A (as he then was) on page 170 lines 5-11 of the record to the effect that: “I would therefore allow the appeal and set aside their conviction and sentence. The appellants are accordingly acquitted and discharged”

I cannot agree more.

I am of the firm view therefore that the decision of the court below is quite right and unimpeachable even though some of its reasons as complained of by the appellant may be wrong. The decision is right because as hereinbefore demonstrated, the circumstantial evidence adduced by the prosecution, if any at all, was not sufficient to link the respondents with the offence charged. There is nothing in the entire evidence before the trial court that points irresistibly to the commission of the offence by the respondents. Suspicion however strong is no substitute for proof by cogent evidence. See:

(i) Igboji Abieke v. The State (1975) 9-11 SC 97

(ii) Michael Alor v. The State (1997) 1NWLR (pt.501) 511 page 517, paragraphs B-C

Even if the court below erred in considering the extra-judicial statements of PW2 and PW6, it is trite law that it is not every error or mistake on the part of a lower court that will vitiate a judgment but only where such error or mistake is so fundamental as to occasion a miscarriage of justice. See Mufutau Aremu & Anor. v. The State (1991) 7 NWLR (Pt.201) 1 page 19, paragraphs E-F.

In the instant case, the appellant has failed to show that the said error of the court below occasioned a miscarriage of justice in that it led to the discharge and acquittal of the respondents when the evidence on record does not warrant such a verdict. On the contrary, the evidence on record fell far short of the standard required to prove the guilt of the respondents beyond reasonable doubt. See Egbe v. King (1950) 13WACA 105 at 106. Indeed, any lingering doubt as persisted in the instant case, must be resolved in favour of the accused persons. See Kalu v. The State (1988) 4 NWLR (Pt.90) 503 and lortim v. The State (1997) 2 NWLR (pt.490) 711.

In view of the foregoing, the convictions of the respondents cannot be allowed to stand for reasons that their guilt could not be proved beyond reasonable doubt. Consequently, the court below was perfectly right in my view, in its decision setting aside the trial court’s judgment and substituting therefore a verdict of discharge and acquittal in favour of the respondents.

It was for these reasons that on 26th October, 2000 I dismissed this appeal as totally lacking in merit, affirmed the decision of the court below that set aside the judgment of the trial High Court which convicted and sentenced the respondents to death.

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SC.43/1999